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In Re Z.W., A Person Coming Under the Juvenile Court Law. v. S.J

April 7, 2011

IN RE Z.W., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
S.J., DEFENDANT AND APPELLANT.



Super. Ct. No. JD227486 APPEAL from a judgment of the Superior Court of Sacramento County, Marlene E. Hertoghe, Juvenile Court Referee. Affirmed.

The opinion of the court was delivered by: Murray J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Mother (S.J.) appeals from the juvenile court's orders reinstating the juvenile court's orders terminating her parental rights and implementing a permanent plan of adoption as to minor Z.W. (who was born in late 2007). (Welf. & Inst. Code, § 366.26.)*fn2 Father has not appealed.

Mother's sole contention on appeal is that the Department of Health and Human Services failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).

In the published portion of the opinion, we hold that although the list of designated agents published annually in the Federal Register changed prior to the final ICWA compliance hearing, the ICWA noticing was valid because the last revised notices were mailed to the agents listed on the previous published list and received before the new list was published. We also hold that mother forfeited any claim concerning defects to the contents of the final ICWA notices because she did not object in the juvenile court.

In the unpublished portion of the opinion, we hold that mother has no standing to challenge an alleged failure to serve the father with the final ICWA notice, that she forfeited her claim concerning the tribes' responses to the ICWA notices, and that the failure of some tribes to respond does not indicate error.

We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND*fn3

In May 2008, the Sacramento County Department of Health and Human Services (Department) removed the minor from the custody of mother and father. In October 2008, the juvenile court sustained the jurisdictional allegations and denied reunification services to both parents. In May 2009, the court terminated the parents' rights to the minor.

Mother appealed from that order, claiming the juvenile court failed to comply with ICWA. (In re Z.J. (Jan. 8, 2010, C062424) [nonpub. opn.].)*fn4 As stated in this court's opinion, mother identified the following errors in the Department's ICWA notices: "(1) the notices failed to list the relative through whom mother's purported Indian heritage derived, despite [the Department] having been given the information by mother and mother's cousin; (2) [Department] failed to satisfy the inquiry provisions as to the father's purported ancestry with the Blackfeet Nation; and (3) they failed to list father's ancestral information." (Ibid.)

The Department conceded its errors on appeal and this court vacated the order terminating parental rights and remanded the matter "with directions to order the Department to: (1) fully identify the relative through whom mother's purported Indian heritage derives; (2) inquire further into the father's purported Indian ancestry; and (3) include the father's ancestral information in the ICWA notice." Our opinion also stated, "If either tribe responds that the minor is an Indian child or eligible for enrollment, the court shall proceed as required by the ICWA. If there is no response to the ICWA notice, or if the tribes or the Bureau of Indian Affairs determine the minor is not an Indian child, the court shall reinstate the order terminating parental rights." (In re Z.J., supra, C062424.)

While that appeal was pending, the juvenile court reappointed counsel to assist the parents with the ICWA issues and set an ICWA compliance hearing for December 11, 2009. At the compliance hearing, the Department indicated it had "interviewed the relatives" of the parents and it would send new ICWA notices to the tribes.

To investigate mother's claim of Indian ancestry, on December 1, 2009, the Department interviewed mother and mother's paternal aunt, E.J. E.J. indicated that the minor's maternal great-great-grandfather's name was John Jefferson, and he was reportedly Creek Indian, and his roll number was "Freedom Roll . . . 103." E.J. also said that the minor's maternal great-great-great-grandfather's name was James Jefferson and her maternal great-grandfather's name was Jim J. E.J. said she did not know if Jim J. was Native American, and did not know of anyone in the family who lived on an Indian reservation.

E.J. also confirmed there was Choctaw and Creek ancestry from the maternal grandfather's mother, but could not say from whom the Choctaw ancestry originated. Mother and E.J. confirmed the spelling of all of the names they had provided, but had no further information to give. E.J. said she would continue trying to obtain information and would contact the Department if she learned anything new.

Several days later, mother contacted the Department by telephone. Mother had her maternal aunt on the telephone as well, but the aunt did not give her name.*fn5 The aunt confirmed that the minor's maternal great-great-great-grandmother was "full Indian," although she did not know her name or her tribe. Mother and her aunt said "they had provided all the information known to them regarding their Native American ancestry."

Mother later provided the Department with the phone number for the minor's paternal grandfather, "L.L.W." The Department contacted L.L.W., who said his ancestry was Choctaw, not Blackfeet as previously reported. He explained the Choctaw ancestry was from his mother's side of the family, but his mother was not enrolled in any tribe and neither was he. He also said he did not know if the minor's paternal grandmother, deceased, was Native American.

The Department attempted to reach father at the county jail facility where he was thought to be incarcerated to obtain further information regarding the paternal grandmother, but he did not respond. It was later determined that he had been transferred from county jail custody to a state facility.

On December 14, 2009, the Department sent another ICWA-030 notice to the Bureau of Indian Affairs (BIA) and the parents by certified mail. Notices also were sent to the Choctaw, Creek, Cherokee, and Blackfeet tribes. Included in the revised notice was a family tree for the minor, which provided more detailed information about the minor's potential Indian ancestry. The revised notice included the maternal grandmother's name and place of birth, as well as the maternal great-great-grandfather's name, state of birth, roll number, and tribe.

At the January 15, 2010 ICWA compliance hearing, mother made several corrections to the December 14, 2009 ICWA-030 notice. She stated that the maternal grandmother's first name was "Glinda," not "Glenda," her birthdate was May 18, 1957, and her date of death was October 13, 1974. Mother also corrected the minor's maternal grandfather's middle name: "the mother's biological father's correct middle name is Gayle, G-a-y-l-e, as opposed to Dale," and the date of his death was December 5, 1981. Mother also stated that although the minor's great-grandmother passed away in Reno, she actually lived in Sacramento. Mother then confirmed the remaining information was accurate.

On January 28, 2010, the Department sent via certified mail revised pages one, three and 10 of the ICWA-030 notice to mother, the BIA, and the Choctaw tribes, Cherokee tribes, Creek tribes, and the Blackfeet tribe previously noticed. The revised pages were accompanied by a cover letter indicating the changes had been made because mother had made additional corrections to the information that had been provided.*fn6 The Department failed, however, to change page four of the ICWA-030 notice to reflect that the minor's great-grandmother's former residence was Sacramento, not Reno.

On March 5, 2010, the father was present and represented by counsel. He provided the court with further information regarding his ancestry, including his mother's maiden name. Father also gave the Department contact information for his father. Mother, who was present at the hearing and represented by counsel, confirmed that the information contained in the previous ICWA-030 notice was correct.

The Department later again spoke with the minor's paternal grandfather, L.L.W., and learned that the paternal grandmother did not have Indian ancestry. The paternal grandfather confirmed the remainder of the information provided regarding his side of father's family, but said that his mother, the minor's paternal great-grandmother, was from Texas, not Oklahoma as indicated on the previous ICWA-030 notice.

On March 8, 2010, two days before this court issued the remittitur in the prior appeal, but three months after the opinion was filed, a corrected ICWA-030 notice, including father's new information, was ...


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